§ 3.8 p.m.
§ The Minister of State, Home Office (Baroness Scotland of Asthal)My Lords, I beg to move that this Bill be now read a second time. The Bill represents the most radical overhaul of domestic violence legislation in 30 years. It reflects the fact that domestic violence is unacceptable, that victims must be protected and offenders punished. It enshrines in legislation for the first time the rights that all victims have to support, advice and information. It includes two new measures to close loopholes where offenders are currently escaping justice.
950 The Bill is a tribute to those who have fought long and hard for change. This includes voluntary sector organisations such as the NSPCC, Women's Aid, Refuge and Victim Support. It also includes Members of this House. The measures in the Bill are the result of consultation, engagement and policy development with a range of stakeholders, including many victims personally, and the work of bodies such as the Law Commission.
The issues that the Bill seeks to address are of grave importance. Domestic violence constitutes one-quarter of violent crime; it claims the lives of two women a week. It will affect one in four women and one in six men at some point in their lives. It has a profound impact on the children involved. More than a third of children living in a violent home are aware of what is happening, and more than half are when the violence is repeated. It also has a profound impact on society. Fifty per cent of women in contact with mental health services have had violent or abusive experiences. Domestic violence is a major cause of homelessness; it accounts for 16 per cent of homelessness acceptances every year.
The measures in the Bill are central to the Government's overall strategy to tackle violent crime, to put victims and witnesses at the heart of the criminal justice system and to fulfil the manifesto commitment to legislate for a "victims' Bill of rights". They also support broader government aims and objectives, such as ensuring that every child has the chance to fulfil their potential. Children who witness domestic violence are more likely to suffer educational failure, ill health, substance misuse, abuse and neglect.
Domestic violence cannot be tackled by legislation alone. A change in attitude and culture is necessary. Although there can surely be few who still believe it is a man's right to beat his wife, one in five young men and one in 10 young women think that violence towards a partner is acceptable in some situations. We must work to prevent domestic violence happening and work with victims and offenders to stop it recurring. We must provide increased legal protection for victims and bring offenders to justice.
Finally, we must provide support to help victims rebuild their lives. To this end, the Government are investing £84 million in their three-stage strategy to tackle domestic violence, of which this Bill is a part. I am delighted to be able to say that today marks the launch of the new national freephone 24-hour helpline. This has been set up with £1 million funding from the Government and £1 million funding from Comic Relief. The helpline is being supported by an online database of all refuge accommodation and services available in the United Kingdom.
The Criminal Justice Act 2003 represented a major step in the radical overhaul of the criminal justice system, with its overall aim of bringing more offenders to justice and restoring victims, witnesses and communities to their proper place at the core of the system, thereby balancing the competing claims for justice. The Bill builds on those changes; it also complements the huge amount of activity being undertaken by criminal justice agencies, other services and voluntary organisations.
951 Victims want to see the perpetrator brought to justice. Unfortunately, there is a wide gap between the number of offences reported and the number of offences in respect of which someone can be brought to justice. Our focused action to narrow the justice gap includes: targeting persistent offenders who commit half of all crime; enforcing warrants for failure to attend court; improving the quality of evidence submitted to the Crown Prosecution Service by the police; and tackling offending on bail.
We have seen the numbers of offenders brought to justice increase by 4.3 per cent between March 2002 and March 2003. In the new year, we will publish a consultation on proposals to improve the efficiency and focus of the criminal injuries compensation scheme and proposals to resource and provide a wider range of services to victims. Subject to the consultation, we intend to legislate.
I have set out the context in which the measures in the Bill were developed. I now turn to the proposals in the Bill itself.
On average, one incident of domestic violence is reported to the police every minute. It is critical, therefore, that they have powers to deal with domestic violence offenders and protect the victim. Clause 1 makes breach of a non-molestation order under the Family Law Act 1996 a criminal offence. This means that such a breach can now be punishable in the criminal courts with a maximum sentence of five years.
It also means that the police can always arrest for a breach. At present, they can arrest without a warrant only if this is specified in the order. Courts will now have to consider whether to make a non-molestation order when they make an occupation order.
Clause 7 makes common assault an arrestable offence. Common assault covers a wide range of violence or threatened violence—for example, striking, or attempting to strike, a person with a fist, stick or bottle, or drawing a knife on someone. Together, Clauses 1 and 7 will clarify and extend the current police powers and ensure that officers attending a domestic violence incident can be more confident in putting "positive policing" policies into action.
We recognise that this is not just about a change in the law but, as I said earlier, about a change in culture and how the police approach domestic violence incidents. I pay tribute to the work ACPO has done in this field, led so ably by Jim Gamble.
It is vital that the law protects all victims of domestic violence, and recognises the relationships that exist in society today. Clauses 2 and 3 extend the protection currently afforded by the Family Law Act. This would mean that same-sex cohabiting couples could apply for occupation orders by virtue of being recognised cohabitants. An occupation order gives the court the power to regulate the occupation of the home for a temporary period of time. For example, the court may use this type of order to exclude the perpetrator of violence from the home and allow the victim to remain in it. Those in intimate personal relationships of a 952 significant duration who have never cohabited or married will also be able to apply for non-molestation and occupation orders.
We recognise that defining relationships is a complex and sensitive area. I expect that your Lordships will want to probe this issue in Committee. I am very keen that we work together to ensure that the law is sensible, coherent and applicable to modern society.
The Bill would make restraining orders under the Protection from Harassment Act 1997 available to the criminal courts on conviction for any offence, but also, crucially, in cases where there has been an acquittal. This gives the magistrates or Crown Courts the ability to make an order, currently available only in the civil courts, if it is felt the victim is in need of protection. It does not undermine the presumption of innocence, since in deciding whether to make an order, the court will consider the same question as would a civil court—is an order necessary to protect from harassment? It avoids the situation in which, following an acquittal, the victim has to have a police escort from the Crown Court to the civil court to obtain adequate protection.
Clause 6 provides for the establishment and conduct of domestic homicide reviews. We believe these are necessary, as a domestic attack which results in the death of the victim—and, sometimes, the children—is very rarely the first attack. The victim and their children may have already been in contact with a range of statutory agencies including the police, schools, social services and healthcare services. These reviews will not be an exercise in apportioning blame, or "naming and shaming"; rather, they will be an opportunity to learn lessons, to better identify risk and to prevent future deaths.
Your Lordships are aware that the Government have asked the Law Commission to consider the law on the partial defences to murder, in particular the partial defence of provocation. The Law Commission is currently consulting on this area and will report to the Government. We await their recommendations before taking any decision on changing the law.
Clauses 4 and 5 create a new offence of causing or allowing the death of a child or vulnerable adult, and have some linked procedural measures to enable an increased number of murder or manslaughter charges to be safely left to the jury in these circumstances. This is to end the unacceptable situation in which those jointly accused of murder evade justice by remaining silent or blaming each other.
I expect your Lordships to scrutinise these clauses closely in Committee. It is a difficult area of law. The Law Commission made some detailed recommendations and, although we have not followed them completely, we believe that we have found a solution which will ensure that people will not escape justice, that all the evidence in these cases is made available to the court, but—and it is a very important "but"—that the proper safeguards are in place so that those who are entirely innocent are not blamed for the crimes of others.
Clauses 9 to 12 make provision for a two-stage trial procedure, following a Law Commission recommendation, whereby part of a trial on indictment 953 in the Crown Court could be heard by a judge sitting without a jury. This is directed at certain cases where the offending conduct of the defendant is repeated so many times that the number of offences is too great to be accommodated in a single jury trial. Such offending used to be dealt with by preferring an indictment charging offences that were regarded as specimens of a wider range of offending. If there was a conviction on the specimen counts, the court would then sentence the offender for the whole. However, a Court of Appeal decision in 1998—Kidd and Others—disapproved that practice on the grounds that it involved sentencing an offender for offences in respect of which he had not pleaded or been found guilty, nor had agreed to have taken into consideration.
Therefore, when it is not practicable for the courts to try an indictment containing hundreds of separate counts, it is no longer possible to sentence the defendant for the totality of his offending. That is a particular problem in cases involving innumerable similar thefts or frauds committed against a long series of victims, in which the defendant can be tried only for a small number of offences in order to make the trial manageable for the jury.
Cases involving child Internet pornography are another, topical example. People charged with such offences may have downloaded thousands of sexually explicit images of children on to their computers, but at present they can be tried and sentenced on the basis of only a handful of those images. To deal with that, the Government have decided to act on recommendations from the Law Commission in their report, The Effective Prosecution of Multiple Offending.
The Bill contains provisions allowing for a two-stage trial procedure. When the court considers that some counts in the indictment can be regarded as samples of other counts, the former would be able to be tried with a jury, and if the defendant was convicted of those, he could then be tried for the remainder by the judge sitting without a jury. The measures will enable the court to try the defendant on counts which properly represent the totality of his offending, and, upon conviction, to sentence him on that basis. They will increase the confidence of victims and the public at large in the criminal justice system by ensuring that people who have committed multiple crimes will be punished appropriately.
Part 3 of the Bill sets out a range of new measures to give victims the rights to consistent and guaranteed levels of advice, support and information from the criminal justice agencies that they come into contact with, and to give them a powerful voice across government. The Bill would give the Secretary of State the powers to issue a code of practice as to what services should be provided by organisations in the criminal justice system and organisations that deal with victims of crime. A preliminary and illustrative draft of this code is in the House Library for scrutiny and comment. It lists some 70 services that victims are entitled to receive as their case progresses through the 954 system. There will, of course, be a formal consultation process before the code is finalised and laid before both Houses.
If a victim feels that the code has been breached, he or she can take their complaint to the Parliamentary Ombudsman, whose job it will be to enforce the code. The ombudsman will have full powers to investigate and report to Parliament on breaches of the code.
The code concentrates on a victim's interaction with the criminal justice system. However, as we pointed out in our national strategy for victims and witnesses published last July, their needs can often extend beyond the responsibilities of the criminal justice agencies. A new independent commissioner for victims and witnesses will be a powerful voice to champion the needs of victims and witnesses across government. He or she will have powers to look at and make recommendations about, for example, the health, housing or social security difficulties that often confront those who are victimised. Taken together with the code, it provides the first focused and holistic response to the all-round needs of victims.
I feel proud and privileged to bring the Bill to this House. It is a Bill of which we can all rightly feel proud. I know that your Lordships will want to scrutinise drafting and seek explanations from the Government as to why we have pursued certain courses of action. However, I hope that we are all agreed that what the Bill seeks to achieve—to tackle domestic violence, bring more offenders to justice, and provide better support for victims and witnesses—represents a truly shared agenda. It will be a privilege and pleasure to work with the whole House on this much needed Bill. I hope that together we will ensure that we have a law that is effective and workable and can genuinely address those issues and better protect the people of this country whom we seek to serve. I commend the Bill to the House.
Moved, That the Bill be now read a second time.— (Baroness Scotland of Asthal.)
§ 3.26 p.m.
§ Baroness Anelay of St JohnsMy Lords, we broadly support the objectives of all the provisions in this Bill. I welcome the fact that the Minister made clear the importance of the House scrutinising properly the Government's measures in Committee. It is always right for us to ask the Government to justify the route that they have chosen to take, especially on occasions when they have diverted from the route adopted by the Law Commission. However, that does not mean that we shall thereby be adopting a hostile approach to the Government's proposals. We shall try to expose any unintended consequences and to make the legislation as robust as possible, so that it may not be challenged in future.
In some part, the Bill bears the hallmarks of a rushed job. No blame for that can be attached to those who drafted it, as they simply have to follow the directions of Ministers. However, there does seem to have been confusion between government departments about what should and should not be in the Bill. That 955 confusion reigned until the very day of the publication of the Bill. The Minister told us in a very helpful briefing meeting last week that there was no disagreement between Ministers about whether there should be provisions to remove the defence of provocation. Her assurance is enough for me; I am not worried whether there was a disagreement between two government Ministers—which did not involve the noble Baroness. What is clear is that, in the Home Office press release at 8.44 a.m. on Tuesday last week, the Government said that the Bill did include measures on the, "reform to defences to homicide—including provocation".
But, hey presto, three hours later, at 11.44 a.m. on the same day, the Home Office press release has suddenly expunged any reference to that measure.
Well, so be it. Whatever lies behind the change, I believe that it was the right thing to do. It is right to refer such an important and far-reaching matter to the Law Commission to enable it to give a considered view. I hope that it will not be asked to give a snap response, as was suggested in the press, but that it will be given a reasonable time to consider the matter. If the original proposals had been in the Bill, it would have been far more controversial than, I hope, it shall prove to be. It is unlikely that it would have proved suitable for Grand Committee. As it is, when the Minister moves her Motion at the end of the debate to send the Bill to Grand Committee, she will have my full support.
I shall comment briefly on some major issues, but leave any detailed comments for Grand Committee. We have always made it clear that we welcome new legislation on domestic violence, and the first part of the Bill covers that. It is an appalling crime that often remains hidden behind closed doors. My response to the issues raised during our deliberations on the Bill will be governed by three factors. First, tackling domestic violence is not only or even primarily an issue for legislation. I very much welcomed the Government's recognition of that in the Minister's opening remarks. She echoed the briefing that we received from Liberty, which states:
One of the central problems in tackling domestic violence is that existing powers are under-utilised".We must try to ensure that education proceeds to ensure that laws are properly used. I associate myself with the Minister's proper words in recognising the work done by ACPO on training in this sphere. More training will be needed as these new measures come into force. Training is required across other agencies as well, as was pointed out earlier today in the latest briefing to noble Lords by Women's Aid.The second factor that will be always at the back of my mind is that family life—indeed, the very definition of "family"—has evolved over the past three decades since the last major consideration of law on domestic violence. We need to take account of that. Partnerships, both of same sex and different sex, need to be brought within any legislation that we consider on domestic violence. I am therefore pleased to see the provisions of Clauses 2 and 3 that appear to recognise 956 that fact, although I will of course need to look very carefully at the definition in Clause 3 to see whether there is sufficient clarity about the length and depth of the relationship that is brought within this provision. I think that, at the moment, there could be real problems with the definition of a relationship that is an,
intimate personal relationship … of significant durationThe third factor that I will need to keep in mind is that in our joint endeavour to address the difficulties of securing the conviction of those who are guilty of domestic violence and child death that may follow from that, we must ensure that the measures in the Bill are robust enough to stand up to legal challenge and particularly that they are compatible with the ECHR.The Minister painted a very disturbing picture about domestic violence and she was right to do so. For some, becoming a victim of domestic violence, or indeed of any crime, may be a minor inconvenience, but for many—for most—it is a devastating experience, taking weeks, months, years, perhaps a lifetime, to begin to pick up the pieces. She is right that being a victim of crime is not an isolated event but an ongoing experience for a large proportion of victims. Surveys have shown that 4 per cent of victims suffer 41 per cent of the crimes. Experience shows that a person's ability to recover from an offence can be considerably improved when others recognise the significance of the event. Sadly, however, as we know, that is not the experience of most victims. We therefore welcome the Government's commitment to raise the standards of service that victims of crime should receive from all criminal justice agencies.
Later today, my noble friend Lord Bridgeman will far more closely address the issues in Part 3 of the Bill. I shall leave that part to him. I shall concentrate on just some of the issues in Parts 1 and 2.
The Minister has outlined what could be some of the most difficult parts of the Bill; that is, the issue of the death of a child in family circumstances—the familial homicide, as it is called in shorthand, and which is covered predominantly in Clauses 4 and 5. Those clauses seek to resolve the impasse that occurs when a child is killed, more than one person is present at the death, but it is impossible to prove which is the guilty party. The Law Commission consultative report made it clear that there is nearly universal recognition among members of the judiciary, practitioners and academics that this is a problem that needs to be resolved, although, as ever, there are variations in the way that they would go about resolving it.
Research undertaken on this matter by the NSPCC makes deeply disturbing reading. During the three-year period covered by the survey,
no less than three children under 10 years old a week were killed or suffered serious injury".Of those children, just over half were under six months old, and 83 per cent were under two years old. Some 61 per cent of investigations that reached a conclusion resulted in no prosecutions, due either to a police or Crown Prosecution Service decision. Of the 27 percent of cases that resulted in conviction for a criminal offence, only a small proportion led to conviction for 957 either homicide or wounding/causing grievous bodily harm. In addition, as we know, the statistics on the reporting of injury to children show that there is significant under-reporting in this sphere. We know that the scale of the problem is devastating.We agree with the Government that it is unacceptable that a child's killer should go unpunished. However, we will need to probe very carefully whether the Government's route is necessarily the best way. Nevertheless, I make it clear that I am setting out on this journey today with the hope that they have found the best route.
There are areas of particular concern that we shall need to examine. The first is whether the drafting of Clause 4(4) is satisfactory. Does it make it clear enough that the Government are imposing a duty of care upon those categories of people, with all the dire consequences that could fall upon them if a child does die? Is the definition of those who should be under a duty of care appropriate, taking special note of how and why the Government have diverged from the Law Commission approach? In casting their net to catch the guilty, have the Government made the net size too small?
As the Minister has already recognised today, we will need to pay very careful attention to the drafting of the Government's provisions in Clause 5 regarding the inferences to be drawn from the defendant's failure to give evidence or refusal to answer a question. I note that the Law Commission's consultative report, number 279, reported that the Criminal Bar Association had reviewed the authorities and submitted that a conviction which was "decisively influenced" by the defendant's silence would be bound to be a violation of Article 6. Therefore, in Committee, we will need to ask the Government to justify their assertion that the Bill is compatible with the ECHR. I constructively look forward to that; I hope that they will be able to justify that.
The first two clauses of Part 2, on criminal procedure, may well prove to be controversial in both Houses, but I support the Government's objectives. There has been much press coverage of the Government's plans to empower a court to issue a restraining order against a person who has been acquitted. The Government have said that orders may be made against either party and that the test is on a balance of probabilities. In looking at the Bill, I do not think that either of those matters is currently made clear in the drafting. I think that we will need to remedy that.
I turn to the matter of multiple offending, dealt with in Clauses 9 to 12. Some press reports have claimed that this part of the Bill is an assault on jury trial. Our objective is that they should certainly not be an assault on jury trial but that they should provide a sensible way forward in retaining jury trial in cases where there is such a large number of counts that there are too many to be accommodated in a single trial.
We agree with the Government that we need to find a way of overcoming the problem caused by the decision in the case of Kidd that precluded the practice 958 of sentencing on the basis of specimen counts, where those counts are the only ones proved and/or admitted by a defendant. I and my honourable friends in another place have already made it clear during our debates on the Criminal Justice Act that we would look with favour on any sensible resolution of the Kidd problem. It remains to be seen whether the solution in the Bill is the right one; it may well be. However, I look forward to debating in Grand Committee the Government's approach and others which I believe that one or two of my noble friends may very constructively bring forward.
This Bill—unlike so many of the Bills emanating from the Home Office—may be short in number of clauses, but I join the Minister in recognising that it is long in the importance of its potential good effect on society and the criminal justice system. I look forward to a lively and constructive debate in Grand Committee.
§ 3.39 p.m.
§ Baroness Thomas of WalliswoodMy Lords, like many others, I very much welcome the Government's initiative to improve the legislative framework for dealing with domestic violence. Violence inflicted within the home by adults upon each other, and largely by men upon women, has been in some ways a hidden crime. Indeed, the government consultation paper on the subject clearly illustrates the inadequacy of the statistics as a measure of the incidence of domestic violence. The police have been reluctant to intervene between couples and family members. Nor has intervention always been welcomed, even by the victims. So it sometimes seems as though violence within the home is regarded by society as different in kind from violence in the street, at the football ground or in the pub. We reject that approach and welcome the Bill. Violence and harassment within the home are an assault against the safety and human rights of the victim and the state has a role in dealing with violence against its citizens wherever it takes place.
But while we are generally supportive of the Bill and believe that it will generally find favour in your Lordships' House, as the noble Baroness, Lady Anelay, said, it may be necessary—I am sure that it will be necessary—to test the intentions of the Government or to improve the Bill through the processes available to us.
I shall deal only with the early part of the Bill, but before I do so it is worth noting that the Bill does not contain any definition of domestic violence. Several respondents have pointed out that different parts of central government use different definitions which could lead to difficulties when they are asked to collaborate in dealing with the problem. For example, what about the protection of older people? What about the protection of women from minority communities faced with forced marriages or genital mutilation? What is the existing law on those matters? Can the Minister reassure us that fears that this absence of a definition will cause problems are unfounded? As the noble Baroness, Lady Anelay, just said, there is no mention of including a partial defence of provocation, which caused a feeding frenzy among 959 the press—I must say I thought that was slightly unjustified—from which the Government have been released by the more serious news of the past couple of days. None the less, it is important to know when the Law Commission, which the Government have tasked with advising them on this important topic, will complete its work.
Some people have serious concerns that the Bill does not contain any provision about contact arrangements, bail conditions or the powers of the courts in matters concerning the welfare of children. Of course, I know that there is a whole body of other law on that matter, but given the close proximity of children to domestic violence in their own homes and the damage it can do to them, even where they themselves are not physically harmed—the Minister referred to that—the lack of a provision about contact arrangements and so on could be an important omission unless there is already sufficient provision in existing law to protect children.
I turn to some of the clauses. There are clearly different views among lobbyists about Clause 1 and the establishment of breach of a non-molestation order as a criminal offence. Women's Aid Federation of England and the main children's charities are very supportive. The NSPCC in particular welcomed the introduction of a criminal offence for breach of non-molestation orders. However, in the context of the police being involved more closely in domestic violence or marital dispute situations, those organisations say that it is important that the police should themselves adopt new protocols. Perhaps specific training is needed to enable the police to specialise in domestic violence so that they can respond sensitively when called in to deal with such cases and gain awareness of the need to monitor the safety of victims and that of any children. I am sure that the wide range of initiatives in the original consultation paper will cover those points but I hope that the noble Baroness will reassure us on that matter.
Interestingly enough, the Women's Aid Federation reports a complainant's comment that without proper enforcement an injunction is no more use than waving a till receipt from Asda. That is an amusing comment but it shows that not all women are reluctant to become involved in the legal system and that some of them at least recognise the advantages that it can bring them.
Speaking personally, it seems to me that Clause 1 follows from the developing definition of the state's duty in relation to safeguarding people from violence wherever it occurs, which is the main thrust of the Bill. The new offence in Clauses 4 and 5 of causing or allowing the death of a child is controversial. The noble Baroness, Lady Anelay, went into that in some detail. In view of the fact that we are extremely restricted by time, I shall try not to say very much about that, except that it seems that the research which the NSPCC carried out indicates that whereas there is a high rate of conviction where deaths are caused by strangers, there is a very low rate of conviction where they are caused by family members. That is clearly a matter that the Bill must address. I am sure that we shall discuss the matter but we have to be willing to 960 take account of the Government's view if they can defend it in every detail, which, knowing the Minister, I am certain that she is always prepared to do.
Clause 17 on the Commissioner for Victims and Witnesses is extremely welcome but I am quite surprised that not everyone feels the same way about it. Concerns have been expressed by what one might call the "children's lobby" that the interrelationship between the Commissioner for Victims and Witnesses and the Children's Commissioner may not be very smooth. I hope that the noble Baroness will assure us that those two people will work together because, if that is not the case, much of the work in terms of collaborative action by local government, central government and various agencies such as the health service, which the Government hope will occur, will be made even more difficult than such collaborative actions already are.
Noble Lords on these Benches welcome the Bill. As the noble Baroness, Lady Anelay, said, we look forward to interesting discussions, if I may put it like that, and serious discussions. I am certain that they will be carried out in a spirit of collaboration and co-operation. I very much look forward to the process.